Today, the Supreme Court decided the cross border shooting case, Hernandez v. Mesa. Here is the opinion.
The issue in the case was whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.
In a 5-4 decision, the Court ruled that Bivens does not extend to claims based on a cross-border shooting. Justice Alito was joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh. "As we have made clear in many prior cases," Alito writes, "the Constitution's separation of powers requires us to exercise caution before" creating a damages remedy in a "new context, and a claim based on a cross-border shooting arises in a context that is markedly new."
Justice Thomas has a concurring opinion joined by Justice Gorsuch. His opinion states that "I write separately because, in my view, the time has cometo consider discarding the Bivens doctrine altogether."
Justice Ginsburg dissented; her dissent was joined by Justices Breyer, Sotomayor, and Kagan. The conclusion of her opinion:
"Regrettably, the death of Hernández is not an isolated incident. Cf. Rodriguez, 899 F. 3d, at 727 (complaint alleged that border agent fired 14 to 30 bullets across the border,killing a 16-year-old boy); Brief for Immigrant and Civil Rights Organizations as Amici Curiae 26–28 (describing various incidents of allegedly unconstitutional conduct by border and immigration officers); Brief for Border Network for Human Rights et al. as Amici Curiae 8–15 (listing individuals killed by border agents). One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal decisions, no action was taken. D. Martínez, G. Cantor, & W. Ewing, No Action Taken: Lack of CBP Accountability in Responding to Complaints of Abuse, American ImmigrationCouncil 1–8 (2014), americanimmigrationcouncil.org/sites/default/files/research/No%20Action%20Taken_Final.pdf. According to amici former Customs and Border Protection officials, `the United States has not extradited a Border Patrol agent to stand trial in Mexico, and to [amici’s]knowledge has itself prosecuted only one agent in a cross-border shooting.' Brief for Former Officials of U. S. Customs and Border Protection Agency as Amici Curiae 4. These amici warn that, `[w]ithout the possibility of civil li-ability, the unlikely prospect of discipline or criminal prosecution will not provide a meaningful deterrent to abuse at the border.' Ibid. In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing.
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I resist the conclusion that `nothing' is the answer required in this case. I would reverse the Fifth Circuit’s judgment and hold that plaintiffs can sue Mesa in federal court for violating their son’s Fourth and Fifth Amendment rights."
More analysis to follow.
Update (Feb. 25, 2:15 PM PST): Amy Howe for SCOTUBlog summarizes the opinion, which is garnering criticism. See here.